URGENT >> BULLETIN >> MOVING: Federal Judge Refuses To Toss Indictment Against AdSurfDaily President Andy Bowdoin; Ruling May Deal Crushing Blow To ‘Autosurf’ Trade; ‘These Alleged Facts Smack Of An Investment,’ Court Says

Andy Bowdoin

BULLETIN: U.S. District Judge Rosemary Collyer has rejected AdSurfDaily President Andy Bowdoin’s sweeping claim that the indictment against him should be dismissed because ASD met none of the three prongs of the “Howey Test” under federal securities laws and a Supreme Court precedent that determines what constitutes an “investment contract.”

Collyer’s refusal to dismiss the indictment may deal a crushing blow to autosurf operators monitoring the ASD case from the murkiest corners of the Internet and hoping that the Howey Test somehow could provide a legal cover to line up suckers and steal millions of dollars from them.

In a pointed, 15-page memo, Collyer walked through all of Bowdoin’s Howey challenges, concluding that a jury reasonably could find that ASD met all three prongs. Specifically, the judge ruled that a jury could find that ASD members were “investing,” that there was a “pooling of investment funds, shared profits, and shared losses” and that “ASD members were paid based on the efforts of others.”

Citing evidence that some ASD members apparently refuse to believe exists despite the fact it is part of the public record of the case, Collyer ruled that part of ASD’s current defense was at odds with statements that appeared on ASD’s own website and in offering materials.

“Based on the allegations set forth in the Indictment, the evidence already before the Court, and the government’s proffers of expected trial evidence, the Court finds that the allegations, if proven, would be sufficient to permit a jury to find that ASD members were investing,” Collyer ruled.

Dozens of ASD members claimed in pro se court filings in 2009 — when the case was in civil court — that “NO EVIDENCE” existed against ASD.

Collyer’s ruling also addressed the subject of payments to members, which ASD called “rebates.”

“Contrary to Mr. Bowdoin’s characterization of the ASD business, ASD’s promise to pay back 125% of the value paid to ASD by an advertiser strongly indicates that the joining of ASD via the purchase of an ‘advertisement’ on the rotator in fact constituted an ‘investment for a financial return,” Collyer ruled.

And, Collyer noted, “these alleged facts smack of an investment.

“Indeed,” she continued, “the government proffers that Mr. Bowdoin awarded ad packages to employees in the way that an employer awards bonuses. It argues that Mr. Bowdoin and the employees of AS[D] treated the ‘ad packages’ as shares from which they could expect to earn returns.”

Collyer cited passages allegedly spoken by Bowdoin himself in offering materials. Meanwhile, she rejected Bowdoin’s claim that the government’s assertion that he was selling “investment contracts” was unconstitutionally vague.

“Mr. Bowdoin’s attack on the facial vagueness of the term ‘investment contract’ as a type of security covered by the Securities Act is without merit,” she ruled. She noted that, despite the fact Bowdoin had argued that ASD met none of the Howey prongs, “Bowdoin did not provide evidence through affidavits or otherwise as to how ASD actually operated — or any other basis — from which the Court could draw legal conclusions on whether ASD operations met the Howey test.”

The prosecution, on the other hand, had supplied actual evidence, had entered it in the record of the case and provided a basis for the court to make preliminary determinations about what a jury potentially could find after considering the evidence, according to the ruling.

Bowdoin’s own words from promos appeared in the ruling. Although he argued to Collyer earlier this year that money sent in by members did not constitute an investment, “[d]irect statements from ASD seemingly contradict this defense,” the judge ruled.

Citing evidence entered by the government, Collyer pointed to a passage on ASD’s own website that said, “[a]dvertisers will be paid rebates until they receive 125% of their ad packages.”

And Collyer noted there is both written and recorded evidence, including at least one email attributed to Bowdoin is which he allgedly wrote, “[l]et’s don’t [sic] use the words investment and returns. Instead, lets [sic] use ad sales and surfing commissions. The Attorney Generals in the U.S. don’t like for us to use these words in our program.”

Prosecutors have argued for nearly three years that ASD engaged in wordplay to skirt securities laws and that Bowdoin was well aware that he was selling securities.

Bowdoin’s “motion to dismiss the Indictment ignores the teaching of the Supreme Court — that courts should examine the substance, not form, of a transaction and evaluate its economic reality,” Collyer ruled.

Read the ruling.

 

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10 Responses to “URGENT >> BULLETIN >> MOVING: Federal Judge Refuses To Toss Indictment Against AdSurfDaily President Andy Bowdoin; Ruling May Deal Crushing Blow To ‘Autosurf’ Trade; ‘These Alleged Facts Smack Of An Investment,’ Court Says”

  1. Poor Saint Uncle Andy!! I wonder how long it will take for his attorneys to file more motions, also using vague legal references. It’s sad if they actually thought these motions would be met with approvals.

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  2. Awe, come on, Don! You know they have to rely on obscure innuendo to try to make their point…! They have no sound legal principles with which to mount a defense.
    Maybe they need to try for a change of venue based on judicial bias, claiming that Judge Collyer can’t be impartial because of the names Andy called her during the forfeiture case…!

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  3. Laidback, they already tried to get Judge Collyer removed from the Civil case. I doubt they will fare any better now than then. I’m sure Andy’s lawyers are preparing more machinations which will likely be filed next week.

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  4. Where in the he** is scumbag Bowdoin getting the money for the lawyers to argue his case?? Needs to be an investigation of that alone. Where did he hide money? Or if some of his slimy henchmen are funding the court case on the if come…. let’s get those suckers out in the lime light. Department of Justice might find some grounds for a criminal case against the whole kit and kaboodle of idiots.

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  5. Has anyone heard when they will start paying the people back that lost money in ASD? I completed all the paperwork but have never heard a word from the government, no confirmation or acknowledgment??

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  6. Bob, as it said in the paperwork, it will take time to process the forms and also to figure out from forensic accounting exactly what money belongs to whom. It is an arduous process, as you can imagine. Andy did not keep very good records, I bet.

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  7. Bob: Has anyone heard when they will start paying the people back that lost money in ASD? I completed all the paperwork but have never heard a word from the government, no confirmation or acknowledgment??

    Hi Bob,

    The lion’s share of the money (about $65.8 million) is tied up in Andy Bowdoin’s appeal of the August 2008 forfeiture case. As things stand, I don’t think there is a way to provide a reliable date upon which the remission administrators can begin to send payments.

    Remember, though, that the civil case was almost litigated to conclusion in January 2009, more than two years ago. Andy Bowdoin submitted to the forfeiture, and the Feds say he signed a proffer letter and acknowledged that the government’s material allegations were all true.

    But on Feb. 25, 2009, more than a month after he submitted to the forfeiture, he reentered the case as his own attorney and sought to undo his forfeiture decision. This allegedly occurred after he had consulted with a “group” of ASD members.

    That set the stage for interminable litigation, and because Bowdoin was “tardy” in filing certain papers, the case was further delayed.

    In January 2010, Judge Collyer ordered the money forfeited. Bowdoin appealed, and that case is still in the appeals court.

    In December 2010, Bowdoin was charged criminally. It appears as though there have been some “tardy” filings in the criminal side of the case, as well.

    Judge Collyer has noted the “tortured history” of the ASD case.

    http://patrickpretty.com/2011/03/17/bulletin-federal-judge-declines-to-transfer-adsurfdaily-ponzi-case-to-florida-says-andy-bowdoin-will-be-tried-on-criminal-charges-in-district-of-columbia/

    The government is providing updates at this site:

    http://www.justice.gov/usao/dc/Victim_Witness_Assistance/adsurfdaily.html

    And the remissions admin has info at this site:

    http://www.adsurfdailyremission.com/

    Keep checking those sites, Bob. The government says there is a huge number of potential ASD victims, so making personal contact with each and every one of them likely is impossible.

    Perhaps you’ll find value in this story:

    http://patrickpretty.com/2011/01/12/bulletin-40000-potential-victims-identified-so-far-in-asd-case-government-says-autosurf-firm-may-not-have-entered-all-names-in-database/

    Patrick

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  8. Rod Cook: let’s get those suckers out in the lime light. Department of Justice might find some grounds for a criminal case against the whole kit and kaboodle of idiots.

    Hi Rod,

    As you’re aware, some of the shills didn’t miss a beat. They almost instantly turned their attention to promoting other scams — and some of them even complained about “slow” ASD refunds from the government when Bowdoin was the one who caused the delays.

    I mean, the ink wasn’t even dry on the forfeiture complaint, and they were pushing other surf schemes, HYIP schemes and cash-gifting schemes — telling the folks to join the new “programs” to make up for their losses in ASD.

    And, of course, they were using words such as “blessings” to close their pitches for the new scams, including 2x2s like the Secret Service took down in the Regenesis case.

    One of the memorable sidebars is that Bowdoin appeared to have forgotten to tell his original set of attorneys that he had $1 million in Antigua in an account under a different name. The attorneys were pressing the court to release $2 million on an an emergency basis while ASD tweaked its business model to become compliant after the fact, and the prosecutors reminded Bowdoin about his own claim about the cash in Antigua.

    AFTER the prosecution provided Bowdoin this reminder, he told the troops that the Antigua cash was there to enable ASD to process credit-card payments. The logical extension of that, of course, was that ASD was even more of a Ponzi.

    And still the suckers cheered!

    Some of them supplied funds to help start a purported nonprofit whose goal was to sue the government back to the Stone Age — if not have the prosecutors charged with crimes. One of the paperwork engineers behind this effort once started a purported nonprofit in the name of a man accused of breaking into a woman’s house and shooting her dead — in the moments after he fled from a shootout scene at which he ambushed police making a traffic stop. He later shot another man, was arrested after a manhunt — and was charged with capital murder.

    He was found guilty, but was spared the death penalty.

    Not to be outdone, the shills later started a letter-writing campaign to sanitize ASD. They apparently all suffered from a mass delusion that a U.S. Senator who once was voted one of the top young prosecutors in the nation was going to destroy his distinguished Senate career by siding with the ASD folks — the folks who wanted to make the lives of the judge, prosecutors and Secret Service agent a living hell of crackpot litigation.

    Of course, some of them also believed that AARP would enter the case on ASD’s side, that Bill O’Reilly would enter the case on ASD’s side, that Glenn Beck would enter the case on ASD’s side — and that President Obama would enter the case on ASD’s side.

    There was a call for a “militia” to storm Washington, a call for a “million person march” on Washington, a call for a TV station in Florida to be charged with Deceptive Trade Practices for carrying news unflattering to ASD, a call for a prosecutor to be charged with Deceptive Trade Practices for taking action against ASD, a call for a prosecutor to be placed in a medieval torture rack, a call for lightning to strike the prosecutors dead, a call for the judge to fork over $30 million and be charged with felonies, and a lawsuit that demanded more than $29 TRILLION — more than double the U.S. Gross Domestic Product in 2009.

    Nearly three years after the August 2008 seizure of Bowdoin’s public assets, the ASD case continues to amaze — and sicken.

    Patrick

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  9. One other thing: In early 2009, Bowdoin, pro se, stopped trying to make a case that ASD was legal. Instead, he set up a theory by which he was denied fair notice of his illegal conduct by the government and that his previous attorneys had railroaded him.

    Under this theory, both the government and Bowdoin’s attorneys were to blame for his legal predicament. Bowdoin never explained who was to blame for the RICO lawsuit filed against him by his own members.

    In any event, Bowdoin is back to arguing that ASD was legal — this after the government says he signed a proffer letter and acknowledged ASD was operating illegally.

    Patrick

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